"The written memorandum," said Harlan, J., "between that company (the Oregon) and the California Steam Navigation Company, in words aptly chosen, shows, as we have seen, an express covenant and agreement, upon the part of the former, that neither the New World nor its machinery shall be used on the waters of California within ten years from May 1, 1864, and, also, to pay a certain sum as actual liquidated damages for any breach of such covenant and agreement. The bill of sale from the Oregon Steam Navigation Company to Winsor and his associates did not contain any words of covenant or agreement. But the company, in view of its express covenants to the California Steam Navigation Company, took care to exact from its vendees a separate written obligation, in which the latter, in express terms, covenanted and agreed with that company, in like manner as the latter had covenanted and agreed with the California Steam Navigation Company. The next writing executed was the bill of sale from Winsor to Hale. That instrument shows nothing more than a covenant to warrant the title to the steamboat. It makes no reference, in any form, to any waters from which the steamboat should be excluded. Then comes the bill of sale executed by Hale to Finch. Its material portions are the same in substance, and in language almost identical with the bill of sale given by the Oregon Steam Navigation Company to Winsor. Each contains a covenant and agreement, upon the part of the vendor, simply to warrant and defend the title to the steamboat, its machinery, etc., against all persons whomsoever. But. each recites, let it be observed, only an agreement that the sec 555. The whole context, also, of the document is to be considered.1 The effect of the condition cannot be determined sale is upon the express condition that it shall not be used or employed upon those waters. Upon the sale by the Oregon Steam Navigation Company to Winsor and his associates, the former, as we have seen, was careful to take the separate obligation of the latter, with surety, containing covenants and agreements, described in such terms as to show that the draughtsman, as well as all parties, knew the difference between a covenant and a condition. The same criticism may be made in reference to the separate writing signed by Finch and Hale, at the time of the execution by the latter of the bill of sale to the former. The latter writing shows, it is true, several covenants and agreements upon the part of Finch, but no covenant or agreement in reference to the use of the boat, such as found in the writings which passed between the California Steam Navigation and the Oregon Steam Navigation, or such as are contained in the separate agreement between the latter and Winsor and his associates.

"If, therefore, we suppose (which we could not do without discrediting some of the testimony) that Finch, at the time of his purchase, had knowledge of all the papers executed upon prior sales of the New World, the absence, as well from the bill of sale accepted by him, as from the written agreement of the same date, signed by him and Hale, of any covenant or agreement that he would not use that vessel, or permit it to be used, on the prohibited waters within the period prescribed, quite conclusively shows that he never intended to assume the personal responsibility which would result from such a covenant.

"It thus appears that the circumstances separately considered, militate against the construction for which plaintiff contends.

" But, if we omit all consideration of the circumstances under which the bill of sale from Hale to Finch was executed, and look solely at the language employed in that instrument, there seems to be no ground upon which the claim of plaintiff can stand. The words are precise and unambiguous. No room is left for construction. It is undoubtedly true, as argued by counsel, that neither express words of covenant, nor any particular technical words, nor any special form of words, are necessary in order to charge a party with covenant. 1 Roll. Abridg. 518; 1 Burr. 290; 1 Vesey, 516; Sheppard's Touchstone, 161, 162; Courtney v. Taylor, 7 Scott, N. R. 765; 2 Parsons' Contracts, 510. 'The law,' says Bacon, 'does not seem to have appropriated any set form of words which are absolutely necessary to be made use of in creating a covenant.' Bacon's Abridgment, Covenant, A. So, in Sheppard's Touchstone, 161-2, it is said: ' There need not be any formal words, as ' covenant,' 'promise,' and the like, to make a covenant on which to ground an action of covenant, for a covenant may be had by any other words; and upon any part of an agreement in writing, in whatsoever words it be set down, for anything to be or not to be done, the party to or with whom the promise or agreement is made may have his action upon the breach of the agreement.' 'Sometimes,' says Mr. Parsons, 'words of proviso and condition will be construed into words of covenant when such is the apparent intention and meaning of the parties.' 2 Parsons' Cont. 510-11. There are also cases in the books in which it has been held that even a recital in a deed may amount to a covenant. Farrall v. Hil-ditch, 5 C. B. N. S. 852; Great Northern R. W. Co. v. Harrison, 12 C. B. 609; Severn v. Clark, 1 Leon. 122. And there are cases in which the instrument to be construed was held to contain both a condition and a covenant; as, ' if a man by indenture letteth lands for years, provided always, and it is covenanted and agreed, between the said parties, that the lessee should not alien.' It was ad-judged that this was ' a condition by force of the proviso, and a covenant by force of the other words.' Coke Litt. 203 b.

1 Pearsall v. Summersett, 4 Taunt. 593; Hassell v. Long, 2 M. & S. 363; U. S. v. Kirkpatrick, 9 Wheat. 720; Bell v. Bruen, 1 How. (U. S.) 169; without taking into consideration the stipulations that it qualifies,1 and it will be construed, as far as possible, so as to give efficiency to the entire contract.2 The construction depends "upon the intention of the parties, to be collected in each particular case from the terms of the agreement itself, and from the subject matter to which it relates."3 "Whether a provision in a contract is a stipulation (exposing the party making it to a suit for damages), or a condition (precluding him from suing until the time prescribed takes place), is to be gathered from the whole document. If the thing in question is something to be done by the party promising (e. g., where a party undertaking to ship corn engages to provide the means of transportation),.

Worcester Bk. v. Reed, 9 Mass. 267; Russell v. Nicoll, 3 Wend. 42; Benedict v. Field, 16 N. Y. 595; Ramsey v. R. R., 3 Tenn. Ch. 170; infra, sec 662.

Whole context to be considered.

" But according to the authorities, including some of those above cited, and from the reason and sense of the thing, a covenant will not arise unless it can be collected from the whole instrument that there was an agreement, or promise, or engagement, upon the part of the person sought to be charged, for the performance or non-performance of some act. Comyns, in his Digest (Covenant, A 2), says that ' any words in a deed which show an agreement to do a thing, make a covenant.' 'But,' says the same author, ' where words do not amount to an agreement, covenant does not lie; as, if they are merely conditional to defeat the estate; as, a lease, provided and upon condition that the lessee collect and pay the rents of his other houses.'Comyns' Dig., Covenant A 3. The language last quoted is found also in Piatt's Treatise on the Law of Covenants. Law Library, vol. 3, p. 17."

1 Boyd v. Siffkin, 2 Camp. 326; Lovett v. Hamilton, 5 M. & W. 639.

2 Stockdale v. Dunlap, 6 M. & W. 224; Johnson v. McDonald, 9 M. & W. 600; infra, sec 667.

3 Tindal, C. J., Glaholm v. Hays, 2 Man. & G. 266.

this is an independent promise; where it is to be done by the other party (e. g., where the corn is to be shipped provided the other party sends for it), then it is a condition to be performed by the promisee before the promisor is bound.1